Ordinance on the Reduction of CO2 Emissions. (CO 2 Ordinance)

Transcription

1 English is not an official language of the Swiss Confederation. This translation is provided for information purposes only and has no legal force. Ordinance on the Reduction of CO2 Emissions (CO 2 Ordinance) of 30 November 2012 (Status as of 15 June 2017) The Swiss Federal Council, on the basis of the CO 2 Act of 23 December (CO 2 Act), ordains: Chapter 1 Section 1 General Provisions Greenhouse Gases Art. 1 1 This Ordinance regulates the reduction of the emission of the following greenhouse gases: a. Carbon dioxide (CO 2); b. Methane (CH 4); c. Nitrous oxide (N 2O); d. Hydrofluorocarbons (HFCs); e. Perfluorocarbons (PFCs); f. Sulphur hexafluoride (SF 6); g. Nitrogen trifluoride (NF 3). 2 The warming effect of greenhouse gases on the climate is converted into the equivalent quantity of CO 2 (CO 2eq). The values are listed in Annex 1. AS SR

2 Taxation Section 2 Definitions Art. 2 In this Ordinance: a. Passenger cars means passenger cars in accordance with Article 11 paragraph 2 letter a of the Ordinance of 19 June on Technical Requirements for Road Vehicles (VTS), for which the status on the definite date of authorisation for circulation is decisive; the following are not deemed passenger cars: 1. armoured vehicles in accordance with Appendix 2 to Annex XI of Directive 2007/46/EG 3, and 2. vehicles with approved places for wheelchairs for disabled persons; b. Companies means operators of fixed installations at a site; c. Rated thermal input means the maximum possible supply of heating energy per unit of time for a fixed installation; d. Total rated thermal input means the sum of the rated thermal inputs of a company s fixed installations that are taken into account in the emissions trading scheme; e. Total output means the sum of the delivered electrical and thermal nominal output of a fossil-thermal power plant; f. Overall efficiency means the ratio of total output to the rated thermal input of a fossil-thermal power plant in accordance with the manufacturer's specifications. Section 3 Sectoral Interim Targets Art. 3 1 The interim targets for 2015 are: a. for the building sector: no more than 78 percent of 1990 emissions; b. for the traffic sector: no more than 100 percent of 1990 emissions; c. for the industry sector: no more than 93 percent of 1990 emissions. 2 If a sector-specific interim target listed in paragraph 1 is not achieved, then the Federal Department of the Environment, Transport, Energy and Communications 2 SR Directive 2007/46/EC of the European Parliament and of the Council of 5 September 2007 establishing a framework for the approval of motor vehicles and their trailers, and of systems, components and separate technical units intended for such vehicles (Framework Directive), OJ. L 263 of , p. 1; last amended by Ordinance (EU) No 678/2011, OJ. L 185 of , p

3 CO 2 Ordinance (DETEC), after hearing the cantons and affected parties, shall request the Federal Council for additional measures. Section 4 Counting Emission Reductions achieved Abroad 4 Art. 4 Eligible emission reductions achieved for projects abroad 5 1 Emission reductions achieved abroad may only be counted by companies and persons authorised by this Ordinance. 2 Emission reductions achieved abroad may be counted if: a. they are attested to by an emission-reduction certificate of the United Nations Framework Convention on Climate Change (UNFCCC) of 9 May ; and b. Annex 2 does not preclude their being counted. Art. 4a 7 Letters of approval for projects 1 Companies or persons wishing to obtain emission-reduction certificates for an emission-reduction project abroad can apply to the Federal Office for the Environment (FOEN) for the necessary letter of approval in accordance with the rules of Article 6 paragraph 3 or Article 12 paragraph 5 of the Kyoto Protocol of 11 December to the United Nations Framework Convention on Climate Change (Kyoto Protocol). 2 The FOEN issues a letter of approval if the requirements of Article 4 paragraph 2 letter b are met. Section 5 9 Attestations for Domestic Emission-reduction Projects and Programmes Art. 5 Requirements 1 Attestations for emission reductions from domestic projects and programmes are issued if: 4 Amended by No I of the Ordinance of 8 Oct. 2014, in force since 1 Dec Inserted by No I of the Ordinance of 8 Oct. 2014, in force since 1 Dec SR Inserted by No I of the Ordinance of 8 Oct. 2014, in force since 1 Dec SR Amended by No I of the Ordinance of 8 Oct. 2014, in force since 1 Dec

4 Taxation a. Annex 3 does not preclude them; b. the project or programme s planned component activities: 1. would not be economically feasible without revenues from the sale of the attestations, 2. meet(s) at least the current state of the art, and 3. provide(s) for measures that lead to an increase in emission reductions as measured against the reference scenario defined in Article 6 paragraph 2 letter d; c. the emission reductions: 1. are verifiable and quantifiable, 2. were not achieved by a company participating in the Emissions Trading Scheme (ETS), and 3. were not achieved by a company with a reduction commitment; attestations in accordance with this Section however can be issued for emission reductions that are achieved by a company with an emissions target under Article 67, but are not included in the emissions target; and d. the beginning of the implementation of the project or programme does not predate the submission of an application in accordance with Article 7 by more than three months. 2 The time when the applicant makes a significant financial commitment to a third party or itself takes organisational measures relevant to the project or programme is deemed the beginning of implementation. Art. 5a 4 Programmes 1 Planned component activities can be grouped together into one programme if: a. they have a common purpose in addition to reducing emissions; b. they apply one of the specified technologies in the programme description; c. they fulfil the inclusion criteria specified in the programme description, which guarantee that the planned component activities meet the requirements of Article 5; and d. implementation has not yet begun. 2 Planned component activities can be included in existing programmes if they meet the conditions of paragraph 1 and had already been demonstrably registered in the programme before the inclusion. Art. 6 Validation of projects and programmes 1 Companies or persons wishing to apply for attestations for an emission-reduction project or programme must have it validated at their own expense by a validator approved by the FOEN. 2 A description of the project or programme is to be submitted to the validator. This must include information about:

5 CO 2 Ordinance a. the measures for reducing emissions; b. the technologies applied; c. the delimitation from other climate and energy policy instruments; d. the hypothetical progression of greenhouse gas emissions if the emissionreducing measures of the project or programme were not implemented (reference scenario); e. total expected annual emission reductions and the underlying calculation method; f. the organisation of the project or programme; g. the anticipated investment and operating costs and expected revenues; h. the financing; i. the monitoring plan, in which the start date of the monitoring is defined and the methods for accounting for emission reductions are described; j. the duration of the project or programme; k. for programmes, in addition: the purpose, the criteria for the inclusion of planned component activities in the programme, the administration of the planned component activities as well as an example of a planned component activity per specified technology. 3 For the validation the validator examines the information specified in paragraph 2 and whether the project meets the requirements of Article 5 or the programme meets the requirements of Articles 5 and 5a respectively. 4 It summarizes the results of the examination in a validation report. Art. 7 Application for the issuance of attestations 1 An application for the issuance of attestations must be submitted to the FOEN. It must include the project or programme description and the validation report. 2 The FOEN may request additional information from the applicant if required for evaluating the application. Art. 8 Decisions about the qualification of a project or programme 1 The FOEN decides whether a project or programme qualifies for issuance of attestations on the basis of the application. 2 The decision is valid for seven years from the start of the implementation of the project or programme (crediting period). 3 No attestations are issued for planned component activities of programmes if: a. a change in applicable legal provisions results in emission-reduction measures that must be implemented during the crediting period; b. the issuance of attestations is for claimed emission reductions attributable to the implementation of measures described in letter a; and 5

6 Taxation c. implementation of the planned component activities had started after the coming into force of the change in legal provisions. Art. 8a Extension of the crediting period 1 The crediting period is extended for successive three-year periods if the applicant has the project or programme revalidated and submits an application for extension to the FOEN no later than six months before the end of the crediting period. 2 The FOEN approves the extension if the requirements referred to in Articles 5 and 5a are still met. Art. 9 Monitoring report and verification of the monitoring report 1 The applicant collects all the required data in accordance with the monitoring plan and records them in a monitoring report. 2 The applicant has the monitoring report verified at its own expense by a FOENapproved verifier. The verification may not be done by the same entity that has validated the project or programme. 3 The verifier examines whether the accounted-for emission reductions meet the requirements of Article 5. For programmes it also examines whether the planned component activities meet the inclusion criteria of Article 5a paragraph 1 letter c. It may limit the verification to a single representative planned component activity. 4 The verifier records the results of the verification in a verification report. 5 The first monitoring report and the accompanying verification report must be submitted to the FOEN at the latest within six months of the end of the year following the beginning of monitoring. Subsequent monitoring and verification reports must be submitted at least every three years. The emission reductions must be disclosed per calendar year. 10 Art. 10 Issuance of attestations 1 The FOEN decides whether to issue attestations on the basis of the monitoring report and the corresponding verification report. 2 Attestations for projects are issued for the extent to which emission reductions have demonstrably been achieved up to the end of the crediting period. 3 Attestations for programmes are issued for the extent to which emission reductions have demonstrably been achieved for no longer than ten years after the end of the programme s crediting period, if the relevant planned component activity has been started during the crediting period. 4 Emission reductions that are attributable to non-refundable payments from the Confederation, cantons or communes for promoting renewable energies, energy efficiency or climate protection are only attested to the applicant if it proves that the 10 Amended by No I of the Ordinance of 22 June 2016, in force since 1 Aug (AS ). 6

7 CO 2 Ordinance responsible public bodies have not otherwise claimed the emission reductions. Emission reductions that are attributable to surcharges obtained in accordance with Article 15b of the Energy Act of 26 June are not attested. 5 The added ecological value of emission reductions is compensated with the issuance of attestations. If the added ecological value has already been compensated, no attestations are issued. Art. 11 Substantial modifications to the project or programme 1 Substantial modifications of the project or programme carried out after the decision has been made regarding qualification or the extension of the crediting period must be reported to the FOEN. 2 A modification to the project or programme is in particular deemed substantial if: a. actual emission reductions deviate from the expected annual emission reductions specified in the project or programme description by more than 20 percent; b. actual investment or operating costs deviate from the values specified in the project or programme description by more than 20 percent. 3 If necessary, the FOEN orders a revalidation. Emission reductions achieved after a substantial modification are only attested in accordance with a new decision on qualification in accordance with Article 8. 4 As of the decision regarding the qualification of the project or programme after a revalidation, the crediting period lasts for: a. seven years if the crediting period has not yet been extended; b. three years if the crediting period has already been extended. Section 5a Attestations for Companies with Reduction Obligations and Companies with Emissions Targets for the Progression of Energy Consumption 12 Art Attestations for companies with reduction obligations 1 Companies with reduction obligations under Article 66 paragraph 1 to which an emission target under Article 67 applies are issued attestations for domestic emission reductions upon application if: a. the company can credibly report that its emissions target will be reached without counting emission-reduction certificates; 11 SR Inserted by No I of the Ordinance of 8 Oct. 2014, in force since 1 Dec Amended by No I of the Ordinance of 8 Oct. 2014, in force since 1 Dec

8 Taxation b. the company s greenhouse gas emissions in the relevant year have been reduced by more than 5 percent as compared with the reduction course determined in accordance with Article 67; and c. for emission-reduction measures, the company has received no nonrefundable payments from the Confederation, cantons or communes for promoting renewable energies, energy efficiency or climate protection or from surcharges obtained in accordance with Article 15b of the Energy Act of 26 June for geothermal power, biomass and waste from biomass; excepted from this are companies that had already registered for the receipt of such funds before the coming into force of the amendment of 8 October Attestations are issued for emission reductions to the extent of the difference between the reduction course minus 5 percent and the greenhouse gas emissions in the relevant year, for the last time in Emission reductions for which attestations have been issued in accordance with paragraph 2 count as the company s greenhouse gas emissions and apply towards meeting the company s greenhouse gas emissions target. Art. 12a 15 Attestations for companies with a target agreement regarding the progression of energy consumption 1 Companies that have agreed with the Confederation upon targets for the progression of energy consumption and also have commitments to reduce CO 2 emissions (target agreement with an emissions target), without being exempt from the CO 2 levy for this purpose, are issued attestations for domestic emission reductions upon application if: a. the target agreement with an emissions target meets the requirements of Article 67 Paragraphs 1 3, is validated at the company s own expense by a FOEN-approved validator and has been assessed by the FOEN as qualified; b. the company submits a monitoring report annually no later than 31 May in accordance with Article 72; c. the company s CO 2 emissions during the preceding three years have in each year fallen short of the agreed reduction course in the target agreement with emissions target by more than 5 percent; and d. for emission-reduction measures, the company has received no nonrefundable payments from the Confederation, cantons or communes for promoting renewable energies, energy efficiency or climate protection or from surcharges obtained in accordance with Article 15b of the Energy Act of 26 June for geothermal power, biomass and waste from biomass; excepted from this are companies that had already registered for the receipt 14 SR Inserted by No I of the Ordinance of 8 Oct. 2014, in force since 1 Dec The revision of 9 Dec relates only to the French text (AS ). 16 SR

9 CO 2 Ordinance of such funds before the coming into force of the amendment of 8 October The validated target agreement with emissions target must be submitted to the FOEN no later than 31 May of the year in which attestations are being applied for. 3 Substantial and permanent changes under Article 73 as well as changes under Article 78 must be reported to the FOEN. If necessary, the FOEN orders a revalidation. 4 Attestations are issued for emission reductions to the extent of the difference between the reduction course minus 5 percent and the greenhouse gas emissions in the relevant year, for the last time in Section 5b Administration of Attestations and Data Protection 17 Art Administration of attestations and data 1 Companies and persons that have applied for the issuance of attestations must at the same time provide the FOEN the operator or personal account to which the attestations should be issued. Attestations are issued and administered in the Emissions Trading Registry in accordance with Articles The following data and documents are managed in a FOEN-administered database: a. first names, surnames and contact information of the applicant, the validator and the verifier; b. the number of attestations issued; c. the core data for the project or programme; and d. the project and programme description, the validation reports, the monitoring reports and the verification reports. 3 On request, the holder of an attestation is granted access to the data described in paragraph 2 letters a and b in connection with the attestation. Access to the data and documents described in paragraph 2 letters c and d may be granted subject to the preservation of manufacturing and trade secrecy. Art Publication of information on projects and programmes The FOEN may, subject to preservation of manufacturing and trade secrecy, publish: a. descriptions of domestic emission-reduction projects and programmes; b. validation reports in accordance with Article 6 paragraph 4; 17 Inserted by No I of the Ordinance of 8 Oct. 2014, in force since 1 Dec Amended by No I of the Ordinance of 8 Oct. 2014, in force since 1 Dec Amended by No I of the Ordinance of 8 Oct. 2014, in force since 1 Dec

10 Taxation c. monitoring reports in accordance with Article 9 paragraph 1; d. verification reports in accordance with Article 9 paragraph 4. Section 6 Coordination of Adaptation Measures Art The FOEN coordinates the measures specified in Article 8 paragraph 1 of the CO 2 Act. 2 It thereby takes account of the cantons measures. 3 The cantons regularly inform the FOEN about their measures. Chapter 2 Technical Measures for Reducing CO 2 Emissions from Buildings Art The cantons regularly report to the FOEN on technical measures for reducing CO 2 emissions from buildings. 2 The report must contain information regarding: a. the CO 2 measures taken and planned and their effectiveness; and b. the progression of CO 2 emissions from buildings within the canton. 3 On request, the cantons make available to the FOEN all necessary documents that form the basis of the report. Chapter 3 Technical measures for reducing CO 2 Emissions from Passenger Cars Section 1 First-time Registration Art Passenger cars registered for the first time in Switzerland are deemed registered for the first time; excluded are passenger cars that have been registered abroad for more than six months before a customs declaration in Switzerland. 2 Registration in a customs enclave in accordance with Article 3 paragraph 3 of the Customs Act of 18 March and in Liechtenstein is deemed registration in Switzerland. Registration in a customs enclave in accordance with Article 3 paragraph 2 of the Customs Act of 18 March 2005, with the exception of Liechtenstein, is deemed registration abroad. 20 SR

11 CO 2 Ordinance Passenger cars may be registered for the first time only if the importer or manufacturer has met the obligations specified in Articles 29 or Should the deadline specified in paragraph 1 lead to the significant unequal treatment of importers of passenger cars that have already been registered abroad before a customs declaration in Switzerland and importers of passenger cars that have not been registered abroad before a customs declaration in Switzerland, or should misuses occur, then DETEC may in particular: a. shorten or extend the deadline by no more than one year; b. define a required minimum number of kilometres covered. Section 2 Importer and Manufacturer Art. 18 Principle The provisions for reducing CO 2 emissions from passenger cars apply to any importer or manufacturer of passenger cars that are registered for the first time in Switzerland. Art. 19 Reference year The calendar year in which compliance with the target is reviewed is deemed the reference year. Art. 20 Large-scale importer An importer that has, in the year preceding the reference year, registered at least 50 passenger cars for the first time is deemed a large-scale importer in the reference year. Art. 21 Provisional assignment as a large-scale importer 1 An importer that, in the year before the reference year, has registered fewer than 50 passenger cars for the first time may apply to the Swiss Federal Office of Energy (SFOE) to be provisionally treated as a large-scale importer in the reference year. 2 The application must be submitted before a passenger car is registered for the first time. 3 If fewer than 50 passenger cars have been registered for the first time at the end of a reference year, the importer must individually account for each passenger car as a small-scale importer. Art. 22 Small-scale importers An importer that has registered fewer than 50 passenger cars for the first time in the year before the reference year, and is not provisionally treated as a large-scale importer in the reference year, is deemed a small-scale importer in the reference year. 11

12 Taxation Art. 23 Emission pools 1 Importers and manufacturers may apply to the SFOE by 30 November of the year preceding the reference year to be treated as an emission pool for a maximum duration of five years. 2 An emission pool has the rights and obligations of an individual large-scale importer. 3 It has a designated representative. 4 Members of an emission pool that are not associated through uniform control in a group, whether by majority vote or otherwise, may exchange among themselves only the following information: a. the average decisive CO 2 emissions; b. the target for the decisive CO 2 emissions; c. the total number of passenger cars registered for the first time; d. the average unladen weight of passenger cars registered for the first time. Section 3 Bases for Assessments Art. 24 Decisive CO 2 emissions 1 Importers of type-approved passenger cars may by 31 January of the year after the reference year submit to the Federal Roads Office (FEDRO) the data required for calculation of the decisive CO 2 emissions, including the following for each individual passenger car: a. the vehicle identification number (VIN); b. the CO 2 emissions; c. the unladen weight; d. possible ecological innovations; and e the holder s code of type approval. 2 If this data is not submitted, then the information in the type approval in accordance with Article 97 VTS 21 and the Ordinance of 19 June on the Type Approval of Road Vehicles (RVTAO) applies. 3 FEDRO may at any time, for data control purposes in accordance with paragraph 1, request importers to submit an appropriate number of certificates of conformity in accordance with Article 18 of Directive 2007/46/EC 23 (Certificate of Conformity, COC). 21 SR SR See footnote to Art. 2 letter a no

13 CO 2 Ordinance Art. 25 Other determinations of decisive CO 2 emissions 1 For a passenger car that is exempt from type approval (Art. 4 RVTAO 24 ), the following evidence of CO 2 emissions is also recognised: a. the COC; b. conformity assessment and conformity verifications in accordance with Article 2 letters m and n RVTAO; c. approvals issued by foreign countries in accordance with national or international law as shown in Annex 2 VTS 25 or at least the equivalent of Swiss regulations; or d. test reports issued by testing bodies that are listed for these tests in Annex 2 RVTAO or are recognised by the FEDRO under Article 17 paragraph 2 RVTAO. 26 1bis For a passenger car that has a type approval but which has been retrofitted for a different motor fuel before the initial approval for operation and has been marked with the type approval number in the inspection report (Art. 75 of the Road Traffic Licensing Ordinance of 27 October ), the evidence specified in paragraph 1 letters b d is recognised For a passenger car for which no evidence under paragraph 1 or 1 bis is available, the decisive CO2 emissions will be calculated in accordance with Annex If the CO 2 emissions of a passenger car cannot be calculated in accordance with the formulas in Annex 4, 300 g CO 2/km is assumed. Art. 26 Passenger cars driven with natural gas For passenger cars that are wholly or partially driven by natural gas, the SFOE reduces the decisive CO 2 emissions by the percentage of the eligible biogenic component of the gas mixture. Art. 27 Ecological innovations 1 The SFOE takes account of reductions of CO 2 emissions that have been achieved through innovative technologies insofar as they are accepted under Article 12 of Regulation (EC) No. 443/ SR SR Amended by No I of the Ordinance of 8 Oct. 2014, in force since 1 Dec SR Inserted by No I of the Ordinance of 8 Oct. 2014, in force since 1 Dec Amended by No I of the Ordinance of 8 Oct. 2014, in force since 1 Dec Regulation (EC) No 443/2009 of the European Parliament and of the Council of 23 April 2009 setting emission performance standards for new passenger cars as part of the Community s integrated approach to reduce CO 2 emissions from light-duty vehicles, version according to OJ. L 140 of , p

14 Taxation 2 The importer must provide evidence of reductions by means of a COC. Art. 28 Target 1 The target for the CO 2 emissions of passenger car fleets of large-scale importers, or in the case of small-scale importers or manufacturers, of individual passenger cars, is calculated in accordance with Annex 5. 2 If a manufacturer is granted an exemption in accordance with Article 11 of Regulation (EC) No. 443/ , the SFOE adjusts the calculation of the target for importers of the relevant passenger car brands. 3 Targets adjusted in accordance with paragraph 2 may not be set off against other targets. 4 If a large-scale importer wants to account for a passenger car brand separately in accordance with paragraph 2, then it must inform the SFOE before registering the first car for the first time in the relevant reference year. For each passenger car brand, depending on the number of passenger cars registered for the first time, it must account for the passenger cars as a separate large-scale importer (Arts. 20 and 21) or as a separate small-scale importer (Art. 22). Section 4 Procedure and Reporting Art. 29 Procedure for importers 1 A large-scale importer must complete an inspection report (Form A) for each imported passenger car and certify that it has imported the passenger car. 2 A small-scale importer must complete an inspection report (Form A) and pay the penalty in accordance with Article 13 of the CO2 Act, if one is owed. 3 For billing and collection, the SFOE is responsible for large-scale importers and the FEDRO is responsible for small-scale importers. Art. 30 Procedure for manufacturers 1 Manufacturers of passenger cars in Switzerland must submit the data specified in Article 24 paragraph 1 to FEDRO according to the type approval or individual testing. 2 The SFOE calculates the possible penalty based on the data of the type approval or the individual testing for each individual passenger car registered for the first time. 3 Before first-time registration, the manufacturer must pay the penalty, if one is owed, to the competent collection authority in accordance with Article 29 paragraph See footnote to Art. 27 para

15 CO 2 Ordinance Art Invoices for large-scale importers 1 The SFOE transmits quarterly to each large-scale importer the list of passenger cars registered for the first time, the target and the decisive CO 2 emissions no later than 31 March, 30 June, 30 September and 31 December of the current reference year. 2 On the basis of the number of passenger cars registered for the first time in the reference year, the target and the decisive CO 2 emissions, the SFOE examines, after the end of the reference year, for each large-scale importer, whether it owes a penalty. 3 If a large-scale importer owes a penalty, the SFOE calculates the amount and prepares a final invoice, taking into account any advance payments invoiced and received in accordance with Article 33. Art. 32 Payment deadline for large-scale importers 1 The large-scale importer must pay the penalty within 30 days of receiving the final invoice Any refund of advance payments is settled within the same deadline. Art Quarterly advance payments 1 The SFOE may require large-scale importers to make quarterly advance payments towards the possible penalty in the reference year. 2 Quarterly advance payments may in particular be required from: a. importers that have been provisionally treated as large-scale importers in the reference year (Art. 21); b. large-scale importers domiciled abroad; c. large-scale importers currently subject to debt enforcement proceedings or with existing certificates of loss; d. large-scale importers whose decisive CO2 emissions exceed the target by more than 5 g CO 2 / km in the reference year. 3 The SFOE prepares each invoice for the advance payments on the basis of the data referred to in Article 31 paragraph 1 on passenger cars registered for the first time in the current reference year. Advance payments already made are taken into account in preparing the invoice. Any surplus is refunded after the end of the reference year. 4 If the final invoice results in a surplus in favour of the large-scale importer, the SFOE refunds the surplus with reimbursement interest. 32 Amended by No I of the Ordinance of 8 Oct. 2014, in force since 1 Dec Amended by No I of the Ordinance of 8 Oct. 2014, in force since 1 Dec Amended by No I of the Ordinance of 8 Oct. 2014, in force since 1 Dec

16 Taxation Art Default interest and reimbursement interest 1 An importer or manufacturer who does not pay an invoice or the final invoice by the deadline owes default interest. 2 The interest rate for the default and reimbursement interest is equivalent to that used for direct federal taxes under the Annex to the Ordinance of 10 December on the Due Date for and Interest on Direct Federal Taxes. Art. 35 Ruling If an importer or manufacturer contests an invoice or the final invoice, then the SFOE rules on the level of penalty. Art. 36 Security measures 1 If a large-scale importer is more than 30 days in default of payment of an advance or final payment, the SFOE may rule that it be treated as a small-scale importer until it has fully settled all payments owed. 2 If the SFOE deems the payment of the penalty or interest at risk, then it may request security in the form of a cash deposit or a bank guarantee from the importer. Art. 37 Reporting 1 In 2016 and every three years thereafter, DETEC reports to the responsible commissions of the Federal Council and the Council of States on the targets reached and the effectiveness of the penalty. 2 The SFOE annually informs the public in appropriate form about the targets achieved, the penalties imposed and administrative expenses. Section 5 Use of the Revenue from the Penalty in accordance with Article 13 of the CO 2 Act Art. 38 Use The revenue from the penalty under Article 13 of the CO 2 Act is used to finance undertakings in accordance with Article 1 paragraph 2 of the Infrastructure Fund Act of 6 October Amended by No I of the Ordinance of 8 Oct. 2014, in force since 1 Dec SR SR

17 CO 2 Ordinance Art. 39 Procedure 1 The revenue equals the receipts as of 31 December of the collection year, including interest minus implementation costs. 2 The revenue is allocated to the infrastructure fund in the second year following the collection year. Chapter 4 Section 1 Emissions Trading Scheme Participation Art. 40 Companies obliged to participate 1 A company is obliged to participate in the ETS if it is engaged in an activity listed in Annex A company that newly engages in an activity listed in Annex 6 notifies the FOEN no later than three months after starting the activity. Art. 41 Exemption from the obligation to participate 1 An ETS company may apply each year by 1 June to be exempted from the obligation to participate with effect from the beginning of the following year if the company s greenhouse gas emissions in the preceding three years were less than tonnes CO 2eq per year. 2 The company must continue to submit a monitoring plan (Art. 51) and a monitoring report (Art. 52) unless it has made a commitment to reduce greenhouse gas emissions in accordance with Article 31 paragraph 1 letter b of the CO 2 Act. 3 If the company s greenhouse gas emissions increase to more than tonnes CO 2eq during a year, then it must again participate in the ETS in the following year. Art. 42 Participation by application 1 A company may participate in the ETS by application if: a. it is engaged in an activity listed in Annex 7; and b. it thereby has a total rated thermal input of at least 10 MW. 2 A company that newly fulfils the participation conditions listed in paragraph 1 must submit the application no later than six months from the date of fulfilment. 2bis A company that withdraws its application despite meeting the conditions specified in paragraphs 1 or 2 has the opportunity to resubmit an application for participation if the total rated thermal input has increased by at least 10 percent since the last 38 Amended by No I of the Ordinance of 8 Oct. 2014, in force since 1 Dec

18 Taxation application. The application must be submitted no later than six months after the increase The application must contain information about: a. the activities listed in Annex 7; b. 40 the installed rated thermal inputs of the company s fixed installations; c. the greenhouse gases emitted from the company s fixed installations in the preceding three years. 4 The FOEN may request additional information if required for assessing the application. Art. 43 Fixed installations not taken into account 1 In determining whether a company meets the conditions of Article 40 paragraph 1 or Article 42 paragraph 1 or 2 bis, and in calculating the extent to which emission allowances or emission-reduction certificates must be surrendered annually to the Confederation, fixed installations in hospitals are not taken into account A company may request that the following fixed installations not be taken into account: a. installations used exclusively for the research, development and testing of new products and processes; b. 42 installations used primarily for the disposal of hazardous waste in accordance with Article 3 letter c of the Waste Management Ordinance of 4 December (WastMA). 3 For thermal fuels used in fixed installations that are not taken into account, the CO 2 levy is not refunded. Art. 43a 44 Withdrawal An ETS company may, no later than 1 June, apply to withdraw from the ETS with effect from the beginning of the following year if it permanently ceases to meet the conditions of Article 40 paragraph 1 or 42 paragraph Inserted by No I of the Ordinance of 8 Oct. 2014, in force since 1 Dec Amended by No I of the Ordinance of 8 Oct. 2014, in force since 1 Dec Amended by No I of the Ordinance of 8 Oct. 2014, in force since 1 Dec Amended by Annex 6 no 2 of the Waste Management Ordinance of 4 Dec. 2015, in force since 1 Jan (AS ). 43 SR Inserted by No I of the Ordinance of 8 Oct. 2014, in force since 1 Dec

19 CO 2 Ordinance Art. 44 Ruling The FOEN rules regarding the participation of companies in the ETS and regarding fixed installations not taken into account in accordance with Article 43. Section 2 Emission allowances and emission reduction certificates Art. 45 Maximum available quantity of emission allowances 1 The FOEN calculates the maximum available quantity of emission allowances each year for all ETS companies as a whole in accordance with Annex 8. 2 It retains 5 percent of these emission allowances annually in order to make them accessible to new market entrants and ETS companies that significantly increase their capacity. Art. 46 Emission allowances to be allocated free of charge 1 The FOEN calculates the quantity of emission allowances to be allocated free of charge annually to ETS companies, based on the benchmarks and adaptation factors described in Annex 9 and taking account of European Union regulations. 2 If the total quantity of emission allowances to be allocated free of charge exceeds the maximum quantity available minus the reserve in accordance with Article 45 paragraph 2, then the FOEN reduces the emission allowances allocated to individual ETS companies pro rata. Art. 46a 45 Allocating emission allowances free of charge to new ETS participants 1 A company that participates for the first time in the ETS after 1 January 2013 receives an allocation of emission allowances free of charge from the reserve in accordance with Article 45 paragraph 2 from the start of its participation in the ETS. 2 Emission allowances are allocated free of charge in accordance with Article If a company s participation in the ETS occurs after the extension of a fixed installation or after a significant increase in physical capacity, then it is allocated emission allowances free of charge in accordance with Articles 46 and 46c. Art. 46b 46 Reduction of emission allowances to be allocated free of charge 1 The quantity of emission allowances to be allocated free of charge annually to ETS companies is reduced from the beginning of the following year if: 45 Inserted by No I of the Ordinance of 8 Oct. 2014, in force since 1 Dec Inserted by No I of the Ordinance of 8 Oct. 2014, in force since 1 Dec

20 Taxation a. a physical change in a fixed installation leads to a reduction of at least 10 percent in the installed capacity of a unit decisive for emission allowances to be allocated free of charge (sub-installation); physical modifications that serve solely to reduce greenhouse gas emissions are excluded; b. the company s operations cease. 2 In the case of partial closures, the quantity of emission allowances allocated free of charge annually to an ETS company is reduced from the beginning of the following year as follows: a. by 50 percent if the sub-installation s activity rate is reduced by at least 50 percent but less than 75 percent; b. by 75 percent if the sub-installation s activity rate is reduced by at least 75 percent but less than 90 percent; c. by 100 percent if the sub-installation s activity rate is reduced by at least 90 percent. Art. 46c 47 Increase in the emission allowances to be allocated free of charge 1 The quantity of emission allowances to be allocated free of charge annually to an ETS company is increased if a physical change in a fixed installation or the expansion of a new fixed installation leads to an increase of at least 10 percent in a subinstallation s installed capacity. 2 The additional emission allowances are allocated from the date on which the additional capacity has been used for 90 days at an average of at least 40 percent (normal operation). 3 If a new sub-installation is created by a physical change in a fixed installation or by the expansion of a new fixed installation, the ETS company is allocated emission allowances according to the greenhouse gas emissions emitted in the time between the initial physical operation and the start of normal operation and in accordance with the benchmarks specified in Annex 9. No emission allowances are allocated free of charge for the production of electricity. 4 If the operation of a fixed installation restarts after a partial closure in accordance with Article 46b paragraph 2, the free-of-charge allocation is adjusted accordingly as of the following year. Art Auction of emission allowances 1 The FOEN regularly auctions to ETS companies all the emission allowances that have not been allocated free of charge. 47 Inserted by No I of the Ordinance of 8 Oct. 2014, in force since 1 Dec Amended by No I of the Ordinance of 8 Oct. 2014, in force since 1 Dec

21 CO 2 Ordinance If it suspects agreements affecting competition or unlawful practices by dominant companies, FOEN may cancel the auction without accepting a bid. It must report any suspicion to the competition authorities. 3 It may award an ETS company a limited quantity of emission allowances at the price corresponding to the result of the auction simultaneously carried out. 4 It may commission private organisations to conduct the auction. Art. 47a 49 Participation in the auction and the binding nature of auction bids 1 ETS companies that participate in the auction must submit the following information to the FOEN in advance: a. first names, surnames, postal and addresses, mobile phone number and proof of identity of at least one, but no more than two, authorised auction agents; b. first names, surnames, postal and addresses, mobile phone number and proof of identity of at least one, but no more than two, bid validators. 2 The information is recorded in the Emissions Trading Registry. 3 Auction bids are binding after a bid validator gives consent. Art. 48 Emission reduction certificates 1 The maximum quantity of emission-reduction certificates that an ETS company may surrender is calculated as follows: 50 a. for fixed installations that have already been taken into account in the ETS in the years : 11 percent of five times the average allowances allocated annually in this period; the emission reduction certificates taken into account in this period are deducted; b. for the remaining fixed installations and greenhouse gas emissions: 4.5 percent of the greenhouse gas emissions of the years For fixed installations that in the years have only been intermittently taken into account in the ETS, the maximum quantity of emission-reduction certificates is reduced according to the applicable duration. 51 Art Recalculation of the quantity of emission-reduction certificates 1 The maximum quantity of emission-reduction certificates is recalculated with effect from the beginning of the following year if: 49 Inserted by No I of the Ordinance of 8 Oct. 2014, in force since 1 Dec Amended by No I of the Ordinance of 8 Oct. 2014, in force since 1 Dec Amended by No I of the Ordinance of 8 Oct. 2014, in force since 1 Dec Amended by No I of the Ordinance of 8 Oct. 2014, in force since 1 Dec

22 Taxation a. a physical change in at least one fixed installation leads to a significant increase or reduction in a sub-installation s installed capacity; b. the company s activities cease; or c. the activities of the essential parts of the company s fixed installations are reduced by at least half. 2 The maximum quantity of emission-reduction certificates for fixed installations in accordance with Article 48 paragraph 1 letter a is reduced to a maximum of 8 percent of five times the average allowances allocated annually in the years minus the emission-reduction certificates taken into account in this period. Section 3 Data Collection and Monitoring Art. 50 Data collection 1 The FOEN or a FOEN-authorised entity collects data to calculate the maximum quantity of emission allowances to be made available and the quantity of emission allowances to be allocated free of charge to individual ETS companies. 2 An ETS company is required to cooperate. If it violates its obligation to cooperate, then it will be denied emission allowances free of charge. Art. 51 Monitoring plan 1 A company obliged to participate in the ETS shall submit a monitoring plan to the FOEN for approval no later than three months after the deadline for notification of new activities specified in Article 40 paragraph 2. 2 A company that is participating in the ETS by application submits a monitoring plan to the FOEN for approval no later than three months after the deadline for the submission of the application to participate specified in Article 42 paragraph 2 or 2 bis The monitoring plan must specify how the company ensures that: a. standardised or other established procedures are used for the measurement or calculation of greenhouse gas emissions; b. the greenhouse gas emissions are as completely, consistently and accurately recorded as is technically and operationally possible and economically feasible; c. the measurement, calculation and documentation of greenhouse gas emissions are traceable and transparent. 53 Amended by No I of the Ordinance of 8 Oct. 2014, in force since 1 Dec

23 CO 2 Ordinance An ETS company amends the monitoring plan if it no longer meets the requirements of paragraph 3 or if an amendment is necessary due to a change under Articles 46b and 46c. It submits the amended monitoring plan to the FOEN for approval. 54 Art Monitoring report 1 An ETS company submits to the FOEN annually by 31 March of the following year a monitoring report that must contain: a. information about the progression of greenhouse gas emissions; b. information about the progression of production volumes; c. an accounting of thermal fuels; d. information about any changes in installed capacities. 2 The data must be shown in a summary table with comparative data of the previous years. The FOEN issues guidelines on the form of the monitoring report. 3 The FOEN may request additional information if required for monitoring. 4 It may require at any time that the monitoring report be verified by a FOENapproved verifier. 5 If an ETS company submits an incomplete monitoring report or fails to submit it by the deadline, the FOEN estimates the company s greenhouse gas emissions. Art. 53 An ETS company s obligation to report changes An ETS company informs the FOEN without delay about: a. changes that could affect the emission allowances to be allocated free of charge; b. changes in contact information. Art. 54 The cantons duties 1 The cantons verify whether ETS companies have met their information obligations under Articles 40 paragraphs 2 and 53 and whether the information provided is complete and traceable. 2 The FOEN makes the required information available to the cantons. 3 If a canton determines that the requirements of this Ordinance have not been met, it informs the FOEN without delay. 54 Amended by No I of the Ordinance of 8 Oct. 2014, in force since 1 Dec Amended by No I of the Ordinance of 8 Oct. 2014, in force since 1 Dec

24 Taxation Section 4 Obligation to Surrender Emission Allowances and Emission Reduction Certificates Art. 55 Obligation 1 An ETS company annually surrenders to the FOEN emission allowances and, if permitted, emission reduction certificates. Decisive are the relevant greenhouse gas emissions of the fixed installations that have been taken into account. 2 An ETS company meets these obligations each year by 30 April for the greenhouse gas emissions of the previous year. Art. 55a 56 Case of hardship 1 On application, the FOEN may increase the maximum quantity of emissionreduction certificates that an ETS company may surrender under Article 48 if it proves that: a. it cannot meet its surrender obligation in accordance with Article 55 without the increase; b. it has participated in an auction of emission allowances in accordance with Article 47 and thus has made offers for the required quantity of emission allowances at market prices; c. procuring the lacking emission allowances outside auctions would significantly impede the ETS company s competitiveness; and d. it is prepared to acquire European emission allowances to the extent of the additional emission-reduction certificates applied for. 2 To assess significant impairment to competitiveness, the FOEN also takes into account in particular the company s receipts from the sale of emission allowances. 3 The application is to be submitted to the FOEN no later than 31 March of the year following the year for which the case of hardship is claimed for the first time. The FOEN decides the quantity of additional eligible emission-reduction certificates annually. 4 European emission allowances acquired in accordance with paragraph 1 letter d must be transferred annually to an account of the Swiss Confederation in the European Union Emissions Trading System. 5 The FOEN transfers back the European emission allowances transferred by an ETS company in accordance with paragraph 4 to the company if no convention regarding the linking of the Swiss ETS with the European Union Emissions Trading System comes into force by 31 December It transfers back the additional emission-reduction certificates delivered in accordance with paragraph 3 to the company by 31 December 2018 if a convention regard- 56 Inserted by No I of the Ordinance of 8 Oct. 2014, in force since 1 Dec